Discrimination Law in Great Britain - Case Study Example

Discrimination Law The Case Of Gillian (i) If Gillian has been employed by the company for several years and has received excellent appraisals in the past and the male employee chosen over her had been employed only for about a year and did not have her credentials then, there is clearly a case of discrimination in the case at bar. Discrimination on the basis of sex is prohibited under the Section 2 (2) of the Employment Equality (Sexual Orientation) Regulations 2003, which states as follows:: (2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person – (a) in terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity, or (d) by dismissing him, or subjecting him to any other detriment. Under the aforementioned law, Gillian has clearly rights specifically under subsection (b) because her employer discriminated against her by promoting a male applicant to the position notwithstanding that she was clearly more qualified than the male applicant. Under Part V of the said law, in Section 28 thereof, Gillian has the option to resort to the Employment tribunal where she can file a complaint against her employer on the basis of the violation mentioned. On the other hand, Gillian has the option to seek refuge under another piece of legislation called the Sex Discrimination Act of 1975. Section 6 (2), Part II thereof on Discrimination of Employers, declared the said act of Gillian’s employer a prohibited act. The relevant provisions states: (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her- (b) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefit, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment Likewise under the aforementioned law, the Employment Tribunal has jurisdiction to receive the complaint of Gillian under Section 63 (1) thereof on Jurisdiction of Employment Tribunals. (ii) In the event Gillian chooses to file her complaint under the Employment Equality (Sexual Orientation) Regulations 2003, the burden of proof lies on Gillian (see Section 29) to present and prove facts which could make the tribunal come to a conclusion that her employer was guilty of violating an act to which Section 28 applies (or under 22 or 23), then the said tribunal will adjudge Gillian’s claim proper unless her employer proves otherwise. If Gillian, on the other hand, chooses to claim under the Sex Discrimination Act of 1975, she is likewise compelled to provide substantial evidence of her claims consisting of facts that will give the tribunal reason to believe her employer guilty under – in her case – Part II of the law, then her claim will be upheld unless Gillian’s employer proves otherwise. (iii) Anent evidence that maybe presented and how they may be obtained by Gillian for use during the proceedings she may institute with the Employment Tribunal, Gillian may make use of a procedural option provided under Section 33 of the Employment Equality (Sexual Orientation) Regulations 2003. Under the said provision, Gillian may serve questions, using appropriate forms under Schedule 2, upon her employer which she may use as evidence during the proceedings. However Gillian must serve these questions only under the following conditions: (1) if served before the institution of the proceedings, they must be served within three months from the time the act complained of happened, or; (2) if served during the institution of the proceeding with the Employment Tribunal, it must have been served 21 days after such institution, and if beyond that with leave of court and on the date specified by it. If, the employer did not respond to such service of questions by Gillian within eight weeks or if he answered but the answer can be characterised as evasive or equivocating, then the court may use it as a basis that the employer did violate the law as complained (subsections 1-4, Sec. 33). In the matter of the service of the said questions: by personal service to Gillian’s employer; by post, to the last known address of the employer; if the employer is a juridical entity, by service, personal or post, to the secretary or clerk of the entity., at its registered or principal office; if Gillian’s employer is represented by a solicitor, by personal delivery or via post, to the solicitor’s office (Subsec 5, Sec. 33). The Case of Sanjay If Sanjay is bent on pursuing his case against his colleague Kevin, he can seek refuge under the provision of the Race Relations Act of 1976 (1976 Chapter 74). The pertinent provision under Part 1 of the aforesaid law states that: 3A – Harassment (1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1 (1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of- (a) violating that other person’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him (2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect. Kevin’s remarks against Sanjay were made over dinner and in the presence of his colleagues which was made more embarrassing to Sanjay. In the second place, Kevin that night were making comments that had racial slurs, which means that the comment he made against Sanjay was intentional and meant to be also racist – he was on a binge of making racial comments. But even if it wasn’t intentionally made, the Race Relations Act of 1975 declared that if the effect of the conduct on the person to whom it was made was to violate his dignity or make his environment hostile, intimidating degrading, offensive or humiliating then it was harassment under the said Act. Sanjay, as he stated, was shocked and very upset when Kevin made the comment. Despite the fact, that Kevin later apologised and said it was just a joke, the fact that his comment was made after having made a series of racist jokes in the presence of Sanjay means that he understood that they were racist in nature and that he did not exercise prudence in making them despite the fact that Sanjay, an Asian, was in the company or without asking first if Sanjay felt offended by the jokes so he could stop. The conduct, as a whole, of Kevin that night belied the fact that he was not making comments that he did not mean. Under Section 54A (1)(b), Sanjay may resort to the employment tribunals and upon proof by Sanjay of the facts he claimed constituting the harassment done to him by Kevin, facts that may allow the tribunal to reasonably conclude that Kevin did indeed harassed Sanjay with his racist jokes, then such tribunal will upheld Sanjay’s complaint unless Kevin can present contrary evidence sufficient to rebut Sanjay’s proof. If Sanjay is successful in his complaint against Kevin the tribunal may issue any or all of the following orders: declaring the rights of both Sanjay and Kevin; ordering Kevin to pay Sanjay an amount corresponding to damages; an order compelling Kevin to take an action appropriate under the circumstances within a specified period. (Sec 54). Sanjay likewise mentioned that his workplace has an anti-racism policy. Under the grievance mechanism set forth in the Employment Act 2002, specifically Chapter 1 of Part 2, which covers Standard Procedure under Grievance Procedures, an employee may file a complaint, in writing, to the employer, setting forth his grievance or grievances and the basis for such grievance. After the employer has had time to consider Sanjay’s complaint, the employer has to set up a meeting with him and Sanjay must attend that meeting where he will personally relate his story and his grievance against Kevin. Thereafter, the employer should subsequently inform Sanjay of his decisions which may either be to call for an investigation into the complaint of harassment against Kevin or deny Sanjay any relief on the ground that he did not find any reasonable ground to conduct a further investigation and inform Sanjay that he may appeal such decision. If the outcome is the latter, Sanjay may appeal by informing the employer that he wishes to do so and the latter then sets up another meeting. After the meeting, the employer again informs Sanjay if his decision has altered. If Sanjay is not satisfied with the decision of his employer he nay bring up the case to the employment tribunals under Section 32, part 3 of the Employment Act of 2002 or he may instead opt to vindicate his case under the already discussed regulation, viz., Race Relations Act of 1976 (1976 Chapter 74). However, if the employer decides to accommodate Sanjay’s complaint, either after the first meeting or after the second meeting on appeal, the employer may call Kevin under the provisions of Part 1, Schedule 2 of the aforementioned Act on Dismissal and Disciplinary Measures. The employer may proceed by setting out in writing the complaint against Kevin and setting a meeting with him but only after Kevin has had enough time and opportunity to consider the allegation against him and prepare his response to the said allegation. As in the grievance procedure under Part 2, of Schedule 2 of the Act, the employer must enquire into the allegation against Kevin and render his decision after the first meeting either for or against Kevin, although the employer is not barred from conducting more meetings in the furtherance of the complaint and to be able to render a just and equitable decision on the case. In the case the employer renders a disciplinary sanction against Kevin, the latter may appeal. If in either case, the employer renders a decision which does not satisfy Sanjay, he may proceed either under the Act as set forth above or resort to the tribunal under the Relations Act of 1976 (1976 Chapter 74). The Case of Vinod Vinod’s case calls for the application of The Employment Equality (Religion or Belief) Regulations 2003 (Amendment) (No. 2) Regulations 2004. The aforesaid law describes two kinds of discrimination against an employer in the workplace. The first, as set forth under Part 1, Section 3 (1)(a) describes direct discrimination and the provision under Part 1, Section 3 (1)(b) describes indirect discrimination. The pertinent provisions are replicated, in toto, below: Discriminations on grounds of religion or belief 3. – (1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if – (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but – (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim. Vinod cannot be said to have been discriminated on grounds of religion under Section 3 (1) (a) because the employer did not treat him differently from the other drivers. All drivers, ten in all, were required to be present on the day of the “super sale.” This is direct discrimination. Under the next subsection, the law describes indirect discrimination which contemplates an employer setting forth a regulation which is made applicable to all employees but is discriminatory to one employee or to other persons who share the same religious persuasion as the said employee. In practical terms applicable to Vinod, this simply means that although Vinod’s employer required all ten drivers to be present during the super sale, the said order has potential discriminatory effect with respect to Vinod because: it would deprive Vinod of the opportunity to attend a special pilgrimage in India which comes only every twelve years. The provision under the indirect discrimination against an employee is a rather abstract provision, and needs a closer perusal of the facts under each and every circumstance. Under Vinod’s case, there needs to be a balancing of facts to determine which between Vinod and his employer will suffer more injury or harm, or corresponding rights violated. On one hand, Vinod’s employer who will undertake a supersale and needs all his ten drivers that day, and on the other, Vinod who has the right to avail of his annual leave entitlement, needs to practice his religion by attending a pilgrimage in India which happens only once in twelve years. Albeit that the freedom to practice one’s religion is a convention right under the European Convention on Human Rights and necessarily subsumed by the domestic Human Rights Act of 1998, the employer must likewise not be deprived of his right, as an employer, to call under reasonable circumstances his employees to render service although it may, in a way, interfere with their religious practices. In the case at bar, the employer has nine other drivers that he could count on and the absence of one in the person of Vinod will not make such a dent on his workforce, besides he can always get a substitute driver in the meantime since driving is not a highly specialised skill. On the other hand, Vinod is more entitled to take the leave. One, he has available unused leave entitlements (assumed), second, the event takes place only every twelve years which means that he will have to wait another twelve years to join the next pilgrimage. References Sex Discrimination Act 1975 (1975 CHAPTER 65). http://www.equalityhumanrights.com/Documents/Legislation/SDA1975.pdf Employment Act 2002.Office of the Public Sector http://www.opsi.gov.uk/acts/acts2002/ukpga_20020022_en_1 Employment Equality (Religion or Belief) Regulations 2003, The. http://www.opsi.gov.uk/si/si2003/20031660.htm#3 Employment Equality (Sexual Orientation) Regulations 2003, The. http://www.equalityhumanrights.com/Documents/Legislation/SexualOrientation2003.pdf Race Relations Act 1976 (1976 CHAPTER 74). http://www.equalityhumanrights.com/Documents/Legislation/RRA1976.pdf Read More